2022 (11) TMI 1503 - HC - Indian Laws

Service of notice - notices issued at wrong address, and returned unserved - Requirement of proper legal notice mandated under Section 138(b) of the Negotiable Instruments Act or not - HELD THAT - On perusal of Annexures-A6, A7 and A8 notices issued in all these cases, notices were returned unserved. However, the photographs of the returned notices produced before this Court would go to show that notices were issued in the name of the accused by showing the name of the firm as Wire Products. Therefore, it has to be held that the issuance of notices in the correct address is a matter of evidence and, therefore, the same is not a reason to quash the complaints. It is relevant to note that the legal position in so far as service of legal notice is well settled. The Apex Court considered the relevant provisos of the Evidence Act as well as General Clauses Act and Negotiable Instruments Act, 1881 in the decision reported in 2007 (2) KHC 932 2007 (2) KLD 148 ILR 2007 (3) Ker. 203 2007 (6) SCC 555 JT 2007 (7) SC 498 2007 (3) KLT 77 2007 (3) KLJ 81 2007 CriLJ 3214 2007 (3) SCC (Cri) 236 2007 (2) Guj LH 512 2008 (1) MPLJ 441 2008 (1) Mah LJ 44 , CC Alavi Haji v. Palapetty Muhammed Anr. 2007 (5) TMI 335 - SUPREME COURT and held 'Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed.' The law is no more res integra on the point that a complaint can be quashed only when it falls under the category of cases as per the principles set out by the Apex Court - it is emphatically clear that notices were issued in Malayalam language as indicated herein above and, therefore, whether the same amount to proper notices is a matter of evidence. In such a case, the complaints cannot be quashed without giving an opportunity to the complainant to prove issuance of legal notice. All these petitions are found to be meritless and are accordingly dismissed.

Summary

Issues Involved:
1. Proper legal notice under Section 138(b) of the Negotiable Instruments Act.
2. Arraignment of the company as an accused.
3. Compliance with mandatory ingredients for prosecution under Section 140 of the N.I. Act.
4. Issuance of notices in the correct address.
5. Grounds for quashing a complaint at a pre-trial stage.

Detailed Analysis:

1. Proper Legal Notice Under Section 138(b) of the Negotiable Instruments Act:
The petitioners argued that there was no proper legal notice as mandated under Section 138(b) of the N.I. Act, claiming that the notices were sent to the wrong address and returned with the endorsement "no such addressee." They cited the decision in Aneeta Hada & Ors. V. M/s. Godfather Travels & Tours Pvt. Ltd. & Anr., which emphasized the necessity of arraigning the company as an accused for prosecution under Section 141 of the N.I. Act.

2. Arraignment of the Company as an Accused:
The court noted that the decision in Aneeta Hada & Ors. was not applicable in the present cases since the company was arraigned as the third accused, with partners as accused Nos. 1 and 2. The respondent's counsel cited Bhupesh Rathod v. Dayashankar Prasad Chaurasia & Anr., where the Apex Court held that the format of the complaint, mentioning the Managing Director first, does not constitute a fundamental defect.

3. Compliance with Mandatory Ingredients for Prosecution Under Section 140 of the N.I. Act:
The petitioners also referred to Preesa Foods and Spices (India) Private Limited v. State of Kerala & Ors., arguing that the five essential ingredients for prosecution under Section 140 of the N.I. Act were not complied with. The court dismissed this argument, stating that the status of the accused (first, second, or third) has no significant bearing once they are arrayed as parties.

4. Issuance of Notices in the Correct Address:
The respondent's counsel argued that the notices were issued in Malayalam, and the address was correctly written in Malayalam, leading to their return. The court held that whether the notices were issued to the correct address is a matter of evidence and not a ground for quashing the complaints. The court referenced CC Alavi Haji v. Palapetty Muhammed & Anr., which established that service of notice is presumed when sent to the correct address by registered post unless proven otherwise.

5. Grounds for Quashing a Complaint at a Pre-Trial Stage:
The petitioners cited Rathish Babu Unnikrishnan v. State (Govt. of NCT of Delhi) & Anr., where the Apex Court advised against quashing complaints at a pre-trial stage due to factual controversies and legal presumptions. The court also referred to Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, listing scenarios where a Magistrate's order issuing process can be quashed. The court reiterated that quashing is warranted only when a complaint is patently absurd, inherently improbable, or suffers from fundamental legal defects.

Conclusion:
The court concluded that the complaints could not be quashed based on the arguments presented. The issuance of notices in Malayalam and their return is a matter of evidence, and the complaints should proceed to trial. The petitions were dismissed, emphasizing that the legal process should not be scuttled at a nascent stage without giving the complainant an opportunity to prove the issuance of legal notice.